What is a “Dangerous Instrument” for the Purpose of Weapon Possession, Assault and other Crimes in New York

The term “dangerous instrument” is used throughout the New York State Penal Law as an elements of certain criminal charges, typically violent felonies such as Assault in the Second Degree, New York Penal Law 120.05(2), but for other misdemeanor crimes such as Fourth Degree Criminal Possession of a Weapon, New York Penal Law 265.01(2). From the context of the criminal statutes in which the term is used, it is easy to understand that the term “dangerous instrument” is basically referring to the use of a weapon. But what qualifies as a weapon and how is it different from a “dangerous instrument?” Not a complete analysis of the law nor a substitute for a consultation with your criminal lawyer, the following helps answers this question.

The Penal Law defines “dangerous instrument” as “any instrument, article or substance…which, under the circumstances in which it is used…is readily capable of causing death or other serious physical injury.” This standard requires some unpacking. Clearly, a large kitchen knife is capable of causing death or serious physical injury if it is used against another person. On the other end of the spectrum, it might be possible to seriously injure someone with a paperclip, but is that really “readily capable” of causing a serious injury. The appellate Court recently addressed such a borderline case in People v. Zeman, 2017 NY Slip Op 09051 (4th Dept. 2017).

In Zeman, the defendant was convicted after trial of Assault in the Second Degree based, in part, on his use of a broom in the assault on the victim. While it is clear from the definition of “dangerous instrument” that the manner in which an item is used, and the context in which it is used, is critically important to a determination of whether or not the item can be considered a “dangerous instrument,” it is equally clear that the item must meet some baseline of being something that is reasonably capable of actually causing serious physical injury. You might imagine that a paperclip could do a lot more damage than a broom in certain circumstances. In any event, the Court in Zeman held that a broom does indeed meet this baseline standard, and can be considered a dangerous instrument in the right circumstances, elevating what would otherwise be a misdemeanor charge to a violent felony punishable by state prison time.

It is safe to say, based on Zeman and other similar cases, that essentially anything can be considered a dangerous instrument in the right circumstances – a phone, a shoe, a broom, and yes, even a paperclip. With this in mind, it is of critical import that regardless of the “dangerous instrument,” your criminal attorney do whatever he or she is able in order to challenge the law and prevent what might be a misdemeanor from being prosecuted as a felony.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent clients in Assault in the Second Degree cases and other cases involving “dangerous instruments” throughout New York City and Hudson Valley region.

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